# Appendix — Nevett v. Sides > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0023%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 446 U.S. 951 ## Text IN THE SUPREME COURT OF THE UNITED STATES October Term, 1978 No. 73- 49 2 REV. CHARLES H. NEVETT, et al., etc., Petitioners, versus LAWRENCE G. SIDES, et al., etc., Respondents. APPENDIX TO THE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Supreme Court, U. 8 FILED SEP 22 1079 | MICHAR RODAK, JR., CLERK whee Se SS A tb A eres Dah tare — os “ he oe ae be |g a ME. i Lee ed iY > Bete TABLE OF CONTENTS Page Opinion of the United States Court of Appeals of March 29, 1978 EE Me re ae ee kk neue a 1 Opinion of the United States District Court of June ll, L776 (Mevett B)....ccce Pree res 59 Concurring opinion of Judge Wisdom.. 65 Opinion of the United States Court of Appeals of June 8, 1976 (Nevett Eee SPS V SLUG RSS 0s a be eces0 O8 Opinion of the United States Dis- trict Court of February 20 and May 24, 1976 (Nevett MP e600 60000 802 Order of the United States Court of Appeals of June 30, 1976, denying rehearing and refusing to review the findings of the District Court on remand. ....+.-142 Alabama Code, §11-43-40 ti, |) Po ee Reverend Charles H. NEVETT et al., In- dividually.and on behalf of all others similarly situated, Plaintiffs-Appellants, i Vv. Lawrence G. SIDES, Individually and in his capacity as Mayor of Fairfield, Alabama, et al., etc., Defendants- Appellees. ; No. 76-2951. United States Court of Appeals, Fifth Circuit. March 29, 1978. Rehearing and Rehearing En Banc Denied May 25, 1978. . Appeal from the United States District Court for the Northern District of Alabama. Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges. TJOFLAT, Circuit Judge: This is the first of four consolid- ated cases we decide today. In all of them 1. The other cases are Bolden v. City of Mobile, 571 F.2d 238 (Sth Cir. 1978); Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 571 F.2d 248 (5th Cir. 1978); Thomas- ville Branch of the v. Thomas County, 571 F.2d 257: (5th Cir. 1978). * black voters challenge municipal election schemes that provide for the at-large elec- tion of certain city officials. The grava- men of their claims is that the black vote in each of the municipalities is submerged in an unnecessarily large, city-wide elec- torate and consequently that they are un- constitutionally deprived of their right to effective political participation in each of these cities. Black residents of Fairfield, an industrial suburb of Birmingham, Alabama, brought this action to strike down their city's municipal election system, which provides for the at-large selection of a city council president and city council- men. “ These plaintiffs (appellants here) claim that Fairfield's ‘at-large system, as applied, acts to dilute their voting power in violation of the fourteenth and fif- teenth amendments to the Constitution. > 2. This case is before us for the second time. The first panel reversed and remanded the district court's judgment for the black residents. Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976). On remand, the district court rendered judgment in ‘favor of the city, and the black residents took this appeal. 3. These plaintiffs brought suit under the authority of 42 U.S.C. §§1981 and 1983 (1970). (Footnote continued on next page) Pd MBit tein, Soca A council consisting of twelve alder- men and a president governs the City of Fairfield. State law allows cities the size of Fairfield, which had a population of 14,369 in 1970 (48 percent of which was black), to divide themselves into wards for the purpose of city government. (Footnote continued from preceding page) _ Record, yol. 1, at 1. They allege no additional statutory violations. Therefore, this case does not present the issue, discussed at length in Judge Wiscom's special concurrence, whether Congress intended in the Voting Rights Act to go beyond the protection provided by the Constitution and invalidate at-large voting schemes, like that of Fairfield, that are not illicitly motivated. See part II infra. 4. The applicable statute is Ala.Code tit. 37, §426 (Supp. 1973). It has remained substan- tially unchanged, except for the specific popula- tion categories, since its original enactment in 1909. Section 426 provides as follows: Election of president of council and alder- men.--In cities having a population of twelve thousand or more, there shall be elected at each general municipal election the followino officers, who shall compose the city council for such cities, and who shall hold office for four years and until their successors are elected and qualified, and who shall exercise the legislative functions of city government and any other powers and © duties which are or may be vested by law in the city council or its members: A president of the city council, and in cities having seven wards or less, two aldermen from each ward, to be elected by the qualified voters 3 (Footnote continued from preceding page) of the several wards voting separately in every ward, except in cities of less than twenty thou- sand population, in which two aldermen from each ward shall be elected by the electors of the city at large, in cities having more than seven wards, one alderman from each ward, and a sufficient number of aldermen from the city at large to make the total number of aldermen fourteen exclusive of the president of the council, and in cities having fifty thousand population or more the city council may create not exceeding twenty wards. The president of the council shall have the right to vote on all questions the same as any other member of the council. Provided however, that the city council of any city having a population of twelve thousand or more may by ordinance or resolution, if adopted kr two-thirds vote of the city council more than six months prior to any general mmicipal election, provide that the city council of said city shall con- sist of five aldermen to be elected from the city at large. And provided further, that the city coun- cil of any city having a population of more than thirty thousand, according to the last or any sub- sequent federal decennial census, or according to any census of such city made pursuant to article 3 of chapter 10 of this title, or Act No. 845 of the Acts of 1953 (sections 481(1) and 481(2) of this title,) and having only five wards, may, by ordin- ance or resolution adopted by two-thirds vote of the city council, at least six months prior to a general municipal election, provide that the city council shall consist of a president and five aldermen. If such an ordinance or resolution is adopted one al- derman shall reside in each of the respective wards of the city, the president and all the aldermen shall be elected by the voters of the city at large, and the president shall vote only in case of a tie. Cities may choose the number of wards and thereby determine whether the aldermen (who must reside in their respective wards) are elected at-large or separately from their wards. Fairfield sectioned itself into six wards and was thus required to elect at- large two aldermen from each ward.> Prior to 1968, no black had been elected to the city council, but in that year six of the seven black candidates suc- ceeded. In 1972, none of the eight black candidates were elected to the council. Ac- cording to the district court, these dis- parate election results can be attributed to racially polarized voting by an electorate in close and changing racial balance. © 5. Neither the record nor the briefs indi- cate when Fairfield opted to section itself into Six wards. The state statute granting mmicipal- ities the option of determining the number of wards was originally enacted in 1909. 1909 Ala.Acts 100. Since neither appellants nor appellees emphasized the issue of when Fairfield exercised its option, we will assume that at all times relevant to this appeal Fairfield had six wards and elected its aldermen at-large. 6. Population figures are not available for the election years 1968 and 1972. In 1970, the year of the decennial census, blacks constituted 48 per- cent of Fairfield population but at least 50 percent of its registered voters. See Nevett v. Sides, 533 F.2d 1361, 1365 n. 3 (5th Cir. 1976). The complaint in this action was filed on May 30, 1973, alleging that "such absolute control of the city government by one race" in an at-large setting worked an unconstitutional dilution of black votes, The case was tried on February 20, 1975, and, after the consideration of voluminous evidence, the district court ruled in favor of the plaintiffs, dictated into the record its findings of fact and conclusions of law, and ordered the parties to file reapportionment Plans by May 1, 1975. The parties submitted Plans and a hearing was held to consider them. The district court entered its final judgment on June 6, 1975, ordering the city divided into eight single-member council districts but allowing the at-large election of a city council president. / The judgment was appealed, and on June 8, 1976, a panel of this court vacated and remanded it, Nevett Vv. Sides, 533 F.2d 1361 (5th Cir. 1976), for failing to apply properly the voting dilution Standards set forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. 7. The district court's original findings of fact and conclusions of law are reported as appendices to our prior opinion, Nevett v. Sides, 533 F.2d 1361, 1366-76 (5th Cir. 1976). 6 iach Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) ,° where we enunciated a set of factors that when established in the aggregate, are probative of unconstitutional dilution. The district court's error was that having found "the various standards and indicia prescribed by the appellate court [not] helpful one way or the other," it nevertheless held that the plan uninten- tionally "does act to inhibit and has in- hibited voting strength" and that "in prac- tice it has worked that way." We held this finding insufficient to support a conclusion of unconstitutional dilution. A finding of dilution, we noted, must be based on the criteria that the Zimmer and Wallace [v. House, 515 F.2d 619 (5th Cir. 1975), vacated and remanded on other rounds, 425 U.S. 947, 96 S.Ct. i73L 48 L.Ed.2d 191 (1976)] courts distilled from White v. Regester, 8. The Supreme Court affirmed, "but with- out approval of the constitutional views expressed by the Court of Appeals." 424 U.S. at 636, 96 S.Ct. at 1085. Notwithstanding, Zimmer continues to control dilution cases in this circuit. Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 571 F.2d 248, 251-252. €i2 U.S. 755, 765-767, 33 8.Ct. 2332, 2339-2340, 37 L.Ed.2d 314, 324-325 (1973) and in accordance with all later cases. Unless those criteria in the aggregate point to dilution, i.e., if the criteria 'don't really help', then plaintiffs have not met their burden and their cause must fail. Nevett v. Sides, 533 F.2d at 1365. On remand, the district court care- fully reexamined its findings of fact (no additional evidence was taken by the court) and considered the Zimmer criteria with specificity.” The court ultimately con- cluded that those findings did not demon- strate an unconstitutional dilution of the black vote in Fairfield. Judgment was en- tered for the defendants on June il, 1976, and the plaintiffs took this appeal. In this appeal, the parties present the following issues for our determination: (1) whether a finding of intentional discrinm- ination is required in a voting dilution case brought by a racial group, (2) whether the district court's findings of fact under the Zimmer criteria are reversible, and (3) whether the district court as a matter of 9. The district court's opinion on remand is set forth in full in the appendix to this Opinion. 8 law correctly interpreted Zimmer and sub- sequent relevant precedents. Since these issues are complex and significant, we think it appropriate to outline briefly how our analysis will proceed. In Part I we discuss the nature of voting dilution cases and the legal prin- ciples governing their determination. This discussion provides the necessary back- ground for Part II, where we examine the first issue raised here, whether intentional discrimination need be shown to make out a case alleging dilution of the voting power of a cognizable racial element. We hold that a showing of intent is necessary to establish such a case. Our holding is based on consideration of both the fourteenth and fifteenth amend- ments. We determine that the recent Supreme Court decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed. 2d 597 (1976), requires a showing of inten- tional discrimination in racially based voting dilution claims founded on the four- teenth amendment. We conclude also that the case law requires the same showing in fifteenth amendment dilution claims. More- over, we demonstrate that the dilution cases 3 6 enna apa of this circuit are consistent with our holding in this case. In particular, we read Zimmer as impliedly recognizing the essentiality of intent in dilution cases by establishing certain categories of circumstantial evidence of intentional discrimination. Having set out the relevant legal principles, the focus of our discussion shifts in Part III to the specifics of this case. There we address and dismiss appellants' contention that the district court's factual determinations are clearly erroneous. Finally, in Part IV we reject appellants' argument that the court below misinterpreted the dilution precedents of this circuit. Consequently, we affirm the judgment of the district court. I. Voting Dilution In describing voting dilution claims, it is imperative at the outset, to dis- tinguish the typical reapportionment case, which presents the traditional "one person, one vote" inquiry. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2da 506 (1964). In such a case, there are a number of coordinate districts (e.g., state DSR Patt DRS et E eet eed 4S 10 legislative districts), and voters in larger districts allege that their votes are devalued in comparison to those of voters in smaller ones. The issue in a typical reapportionment case, therefore, is whether population deviations from the average district are impermissibly large. See, e.g., White v. Regester, 412 U.S. 795, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). The comparison is one based purely on population figures; no showing of discrimination along racial, ethnic, or political lines need be shown. A case alleging violation of the one person, one vote standard, based solely on a mathematical analysis, may properly be called a "quantitative" reapportionment case. That an apportionment scheme satis- fies the quantitative standard does not, however, insure equality in all the aspects of political representation. The hetero- geneity of our society manifests itself in an unequal distribution of interest groups; racial and ethnic groups tend to be compart- mentalized. Thus, even a districting plan drawn without regard to the distribution of 41 —_ such groups may distort their relative vot- ing strengths. And, of course, these under- lying patterns present the opportunity for subtle discrimination by the manipulation of district lines. Such discrimination can occur even if perfect population equality exists. Cases alleging a distortion of group voting power of this type have been termed "qualitative" reapportionment cases be- cause they focus "not on population-based apportionment but on the quality of repre- sentation." Whitcomb v. Chavis, 403 U.S. 124, 142, 91 S.Ct. 1858, 1868, 29 L.Ed.2a 363 (1971). A familiar type of qualitative re- apportionment case is one alleging gerry- mander, the drawing of district lines to fence out, e.g-., Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2a 110 (1960), or slice up a compact interest group, e.g., Kirksey v. Board of Supervisors, 5954 F.2d 139 (5th Cir.) (en banc), cert. U.S. , 98 S.Ct. 512, 54 L.Ed.2a 454 (1977). Another, similar variety of qualitative reapportionment case is the denied, dilution case, such as the one presented | here. An at-large scheme operating to dilute the voting efficacy of an interest group iz does so by exploiting the tendency of large districts to diminish what would be the natural effect of residency patterns if legitimate single-member districts were employed instead. If the single-member districts are small enough, a compact in- terest group will constitute a majority in some districts and will thus have the capa- city to elect candidates sympathetic to its needs. The large districts characteristic of at-large plans tend to’submerge compact groups in constituencies whose predominant segments may be unsympathetic to the group and its needs. The Constitution,’ however, does not demand that each cognizable element of a constituency elect representaives in pro- portion to its voting strength. White v. Regester; Whitcomb v. Chavis; Kirksey v. Board of Supervisors; Zimmer v. McKeithen. Even consistent defeat of a group's candi- dates, standing alone, does not cross constitutional bounds. Whitcomb v. Chavis, 403 U.S. at 152-53, 91 S.Ct. 1858. The issue in dilution cases, therefore, is not whether a given group elects a min- imum number of candidates, and the standards are not different when, as here, the inter- est binding the group is one of race. "[I]t 13 is not enough that the racial group alleg- edly discriminated against has not had le- gislative seats in proportion to its voting potential." White v. Regester, 412 U.S. at 765-66, 93 S.Ct. at 2339. Rather, in the absence of evidence that the at-large pro- visions themselves were "conceived or op- erated as purposeful devices to further racial. . .discrimination," Whitcomb v. Chavis, 403 U.S. at 149, 91 S.Ct. at 1872, the inquiry becomes one of determining whether the influence of a given racial group has been distorted because its mem- bers. have been denied equal access to politi- cal processes such as party nominating pro- cedures, registration, and, of course, voting. See id. at 149-50, 91 S.Ct. 1858. As ex- plained in White v. Regester, the only Su- preme Court case to date that has struck down an at-large scheme under a dilution rationale, [t]he plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question--that its members had less opportunity than did other : sidents in the district to participate in the 14 political processes and to elect legislators of their choice. White v. Regester, 412 U.S. at 766, 93 S.Ct. at 2339, (citing Whitcomb v. Chavis, 403 U.S. at 149-50, 91 S.Ct. 1858.) In Zimmer v. McKeithen this circuit explicated the tests established in Chavis and Regester by enumerating certain factors the district courts should consider to determine whether a dilution case has been made out. These criteria were designed to guide the district court in the reception of evidence by establishing certain inquiries subsidiary to the ultimate issue of dilution. The district court is to make a particular- ized determination under each criterion and then weigh its findings to ascertain whether "in the aggregate" they point to dilution. Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977); David v. Garrison, 553 F.2d 923, 929 (Sth Cir. 1977); Nevett v. Sides, 533 F.2d 1361, 1365 (5th Cir. 1976); Zimmer, 485 F.2d at 1305. The court in Zimmer established two categories, one containing criteria going primarily to the issue of denial of access or dilution, the other containing inquiries as to the existence of certain structural voting devices that may enhance the under- is ‘ lying dilution. The "primary" factors in- clude: the group's accessibility to polit- ical processes (such as the slating of candidates), the responsiveness of repre- sentatives to the "particularized interests" of the group, the weight of the state policy behind at-large districting, and the effect of past discrimination upon the group's participation in the election system. 485 F.2d at 1305. The "enhancing" factors in- clude: the size of the district; the portion of the vote necessary for election (major- ity or plurality); where the positions are not contested for individually, the number of candidates for which an elector must vote?®; and whether candidates must reside in subdistricts. Id. 10. A provision requiring that each elector cast votes for as many candidates as there are posi- tions is known as an anti-single Slot rule. An anti-single slot rule has application only in the context of an electoral scheme that selects winners by ranking all candidates in the order of the number of votes they receive. If there are x offices, the top x candidates fill them. This electoral scheme is denominated the "single-ballot-plurality" voting system. See R. Dixon, Democratic Representation: Reapportionment in Law and Politics 05 (1968) ; Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W.Pol.Q. 742 (1964). An anti-single (Footnote continued on next page) 16 The following discussion demonstrates that a finding of racially discriminatory dilution under the Zimmer criteria raises an inference of intent and, therefore, that a finding under the criteria satisfies the intent requirement of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Be- fore this discourse is set out, we will examine the relevance of Davis to the voting dilution principle. II. The Intent Requirement in Voting Dilution Cases In this part we explain and justify our holding that to succeed in a dilution case such as the one before us, a plaintiff must show the at-large plan to be racially (Footnote continued from preceding page) shot rule invalidates all ballots that do not show votes for as many candidates as there are positions. Minority voters can be disadvantaged by such a rule because it may force them to vote for non- minority candidates, thus depreciating the relative position of minority candidates. The numbered position provision in force in Fairfield, also known as a "place" rule, requires candidates to choose one of a given number of posi- tions and run for it. Thus, given x positions, it is as if there were x separate district-wide con- tests. The place system disadvantages minorities by causing minority candidates to run in head-to-head contests against majority candidates. See White v. ster, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). 17 motivated. We begin with a discussion of the applicability of the intent prin- ciple to fourteenth amendment dilution claims. Next, the applicability of the principle to fifteenth amendment claims is discussed. Finally, we harmonize our holding with the case law of this circuit by demonstrating that Zimmer and its pro- geny establish sufficient conditions for a finding of intentional discrimination. A. Intent in Fourteenth Amendment Dilution Claims We start with a reiteration of the principle expounded by the Supreme Court in Davis. Where official action is rac- ially neutral on its face, courts must adhere "to the basic equal protection principle that the invidious quality of a law claimed to be racially discrimina- tory must ultimately be traced to a racially discriminatory purpose." 426 U.S. at 240, 96 S.Ct. at 2048; accord, United States v. Texas Education Agency, 5964 F.2d 162, 165-66 (5th Cir. 1977). The. Court restated this teaching in Village of Arlington Heights v. Metropolitan Hous- ing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2da 450 (1977): 18 "Proof of racially discriminatory intent Or purpose is required to show a viola- tion of the Equal Protection Clause." The language of Davis and Arlington Heights appears to establish intent as a prerequisite of universal applicability to fourteenth amendment claims of racial discrimination. 2 For appellants to suc- ceed in their assertion that racially discriminatory intent need not be shown in dilution cases, we must find such cases exempt from the general principle enun- ciated in Davis and Arlington Heights. We do not so find. It is readily apparent that voting dilution cases are quite typical of trad- itional fourteenth amendment cases. Here the appellants challenge legislation establishing at-large districting, a prac- tice racially neutral on its face, as dis- criminatory in its effect: blacks do not ll. Since the four cases we decide today allege dilution of black votes, our holdings are necessarily limited to cases entertaining claims of racial discrimination. 19 elect their proportionate share of the city council. In Davis, the plaintiffs attacked a written personnel test, itself devoid of racial overtones, that had the effect of failing four times as many blacks as whites. And in Arlington Heights, blacks challenged a zoning ordinance pro- hibiting multi-family development, again a neutral provision, that resulted in the virtual exclusion or racial minority groups. The plaintiff* failed in both of these latter cases because they had not shown the official action to be racially motivated. Simply put, "[p]roof of a racially dis- criminatory intent or purpose is required to show a violation of the Equal Protection Clause." The language of the Court in Davis and Arlington Heights is unambiguous and admits of no exception. Analytically, no- thing about at-large districting legislation Suggests that it should be treated differ- ently from any other manifestation of of- ficial action that may impact groups of people differentially. This observation is substantiated by the reliance of the Court in Davis and Arlington Heights upon Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, ll L.Ed.2d 512 (1964), a case that z0 en aa eee. ar rar ee PDE GEO EF a ee 0 entertained an allegation that New York's congressional apportionment plan was a ra- cial gerrymander. In Davis and Arlington Heights, the Court buttressed its holdings by referring to Wright and other fourteenth amendment cases that held intentional discrimination necessary. The Davis opinion contains the following discussion: The rule is the same in other contexts. Wright v. Rockefeller, 376 U.8. 52; G4 8.Ct. 603, Li L.Ed.2d 512 (1964), upheld a New York congressional apportionment statute against claims that dis- trict lines had been racially gerrymandered. The challenged districts were made up pre- dominantly of whites or of minority races, and their boun- daries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York legislature ‘was either motivated by racial considerations or in fact drew the districts on racial lines'; the plaintiffs had not shown that the statute 'was the product of a state contrivance to segregate on the basis of race or place of origin.’ 376 U.S. at 56, 58, 84 S.Ct. at 605, 11 L.Ed.2d at 515. The dissenters were in agreement that the issue was whether the "boundaries. . .were purposefully drawn on racial lines." 376 U.S. at 67, 84 S.Ct. at 611, 11 L.Ed.2da at. 322. wi 426 U.S. at 240, 96 S.Ct. at 2047; accord, in the electoral process. An unconstitu- Arlington Heights, 429 U.S. at 265, 97 tional gerrymander violates this right by S.Ct. 555. compartmentalizing or fencing out a group, This very recent reaffirmation of | e.g., Gomillion v. Lightfoot, 364 U.S. 339, the holding in Wright leaves no doubt that 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), or by a showing of intent is a necessary element slicing up a compact minority, e.g., Kirksey in a case alleging a racial gerrymander.*? v. Board of Supervisors, 554 F.2d 139 (5th We see no distinction that would call for Cir. ) (en banc), cert. denied, U.S. different constitutional requisites ina __- 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); racial gerrymander case than in a voting Robinson v. Commissioners Court, 505 F.2d dilution case such as this. The right , 674 (Sth Cir. 1974). An invidious at-large allegedly infringed is the same in both con- scheme merely achieves the same end, denial texts: the right to effective participation of effective participation by submerging an . 12. That a districting scheme is motivated interest group in a constituency large enough a oe a ee ogoenn icnaama and polarized enough to place that group in tection clause. A districting body may properly the minority consistently. consider race if the plan does not "slur or stigma[tize]" any race and does not "fence out" a That the constitutional tests should racial group from participation in political be the same whether the right to an equally processes or "minimize or unfairly cancel out" effective vote is denied by drawing district such a group's voting strength. United Jewish ’ anizations v. , 430 U.S. 144, 165, 97 | lines or erasing them is illustrated in a S.Ct. 996, 1009, = L.Ed.2d 229 (1977). Although number of our cases. We have repeatedly held a benign plan, which is designed to remedy the 3 ' ; underrepresentation of a racial minority group, the Zimmer criteria relevant to gerrymander is permissible under the Constitution, a state as well as dilution cases. In Robinson v. or locality is under no obligation to provide ; minorities, racial or otherwise, with repre- | Commissioners Court, 505 F.2d 674 (5th Cir. sentation proportionate to their voting power. | 1974), a case finding a racially motivated E.g., White v. ster, 412 U.S. 755, 765-66, 93 i S.C&. 2332, 37 Tha 2 314 (1973); Whitcomb v. gerrymander that fragmented "what could other- . Chavis, 403 U.S. 124, 152, 91 S.Ct. 1858, 29 wise be a cohesive voting community," id. at L.Ed.2d 363 (1971). 679, we stated: 22 . asd The standards for decision in dilution cases are developed primarily in cases dealing with [at-large] districting [citing, inter alia, White v. Regester, Whitcomb v. Chavis, and Zimmer v. McKeithen]. But "we have no hesitation in applying [those tests to] measure. . .the consti- tutionality of reapportionment plans involving only single-member districts. In each instance, we are required to determine the same question, whether or not there has been an unconstitutional manipu- lation of electoral district boundaries so as to minimize or dilute the voting strength of a minority Class or interest.” Id. at 678 (quoting Howard v. Adams County Board of Supervisors, 453 F.2d 455, 458 n. 2 (5th Cir.), cert. denied, 407 U.S. 925 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972)) (emphasis added); accord, Kirksey v. Board of Supervisors, 554 F.2d at 143. Since we find no constitutionally significant dis- tinction between this case and a gerryman- der case light Wright v. Rockefeller, a decision expressly reaffirmed by the Su- preme Court in Davis and Arlington Heights, we hold that a showing of racially moti- vated discrimination is a necessary element in an equal protection voting dilution claim such as the one presented in this ‘ z4 i as Vo Dv OD AE 2. . case. i3 B. Intent in Fifteenth Amendment Dilution Clzims The appellants allege that Fair- field's at-large plan is violative of the fifteenth amendment.as well as the four- teenth. Thus, we must determine whether 13. Appellants point out, however, that neither Davis nor Arlington Heights contains any reference to voting dilution decisions such as Regester, Chavis and Zinmer. These dilution cases, appellants contend, have not required a showing Go ts ane SOREN, and hence ailure of Davis or Arli Heights re to overrule these APlutian pee eey they are an exception to the general rule. Appellants' error is that they misconceive these dilution precedents. ster and Zimmer do not hold that a showing oF InEGRE is ummeeesary for a finding of unconstitutional dilution. Racially th both Teceenee ee «een feokor both s Zimmer. In Regester, the Court found a story of official racial discrimina- tion. . ., which at times touched the right of Negroes to register and vote and to participate in the democratic process." 412 U.S. at 766, 93 S.Ct. at 2339; and in Zimmer, the Court noted that "minority residents. . - have suffered from a pro- tracted history of racial discrimination which touched their ability to participate in the elec- toral process." 485 F.2d at 1306. We recognize that neither Regester nor Zimmer dealt with the issue of racially motivated discrim- ination in the enactment of the at-large plans con- tested in those cases. The necessary intent, however, need not exist at the passage of the plan. All that (Footnote continued on next page) xo illicit motivation is a prerequisite to a successful claim under the fifteenth amend- ment. We hold that it is. The fifteenth amendment is a specific prohibition against state or federal action that denies or abridges "[t]he right of citizens of the United States to vote. . .on account of race, color, or previous condi- tion of servitude." U.S. Const. amend. xv, §1. Historically, this amendment was the vehicle of first resort for blacks alleging impairment of their franchise.+4 It protects (Footnote continued from preceding page) is nécessary is that the invidiously disproportionate impact "ultimately be traced to a racially discrimi- natory purpose." Davis, 426 U.S. at 240, 96 S.Ct. at 2048. Thus, as we recently held in , a plan, pristine in its enactment, that carries forward past discrimination is violative of the fourteenth amendment. Similarly, a plan legitimate at its inception may become a vehicle for intentional dis- crimination and hence become unconstitutional when - changing circumstances render it invidiously dis- , criminatory. Bolden v. City of Mobile, 571 F.2d 238 (Sth Cir. 1978). 14. The fifteenth amendment was ratified in 1870, but was not successfully invoked before the Supreme Court until 1915, when the Court nullified an Oklahoma provision exempting those who were qual- ified to vote prior to 1868 and their descendants from literacy and requirements. Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. ; accord, rs v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 915). Since blacks (Footnote continued on next page) x6 i i the rights of blacks to participate at all levels of the political process and inter- dicts all methods demonstrably contrived to (Footnote continued from preceding page) were disenfranchized prior to the adoption of the amendment, this "grandfather clause" required blacks to pass literacy and property tests while i whites. When the Oklahoma legislature substituted a provision preserving the registrations of all those who had qualified under the invalidated provisions but requiring others to register within a given eleven-day period (or lose eligibility forever) , the Supreme Court invalidated the substitute. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1201 (1939). Subsequent decisions under the fifteenth amendment invalidated attempts to exclude blacks from party nominating processes, v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 115 53); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), and invidiously to administer li tests, Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed. 0 965); Davis v. Schnell, 81 F.Supp. 872 (S.D.Ala.), aff'd, U.S. P S.Ct. 749, 93 L.Ed. 1093 (1949). Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.od 110 (1560) , is the first re- apportionment case decided under the amendment. It, of course, held that a complaint alleging a racial gerrymander states a cause of action under the fifteenth amendment. See also Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, To Bt oa 512 (1964); Smith v. Paris, 257 F.Supp. 901 (M.D.AJa. 1966), aff'd per curiam, 386 F.2d 979 (5th Cir. 1967); Sims v. ees, ae F.Supp. 96 (M.D.Ala. 1965). For a more tai discussion of the history and development of the fifteenth amendment, see W. Gillette, The Right to Vote: Politics of the Passage of the Fifteenth Amendment (1965); J. Matthews, Legislative and Judicial History of the Fifteenth Amendment (1909) ; (Footnote continued on next page) ae 15 As the Su- diminish this participation. preme Court stated in the case of Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281 (1939): The [Fifteenth] Amendment nulli- fies sophisticated as well as simple-minded modes of discrimina- tion. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race. Broad though the reach of the amend- ment may be, it has been invoked successfully only in cases founded on acts of intentional racial discrimination. The necessary motiva- tion was painfully apparent in the early cases striking down the exclusion of blacks from party primaries, e.g., Terry v. Adams, 345 U.S. 461, 463-65, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); the grandfather clause, Guinn v. United States, 238 U.S. 347, 364-66, 35 (Footnote continued from preceding page) uae Lucas, in the Thicket: A Perusal of Gomillion v. Ligh , 1961 Sup.Ct.Rev. 194. 15. See discussion, supra note 14. S.Ct. 926, 59 L.Ed. 1340 (1915); and the invidious administration of literacy tests, e.g., Louisiana v. United States, 380 U.S. 145, 151-53, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). Moreover, and of particular rele- vance to the inquiry before us, racially discriminatory motivations were unmistak- ably present in Gomillion, where the Court remarked that if the plaintiffs could prove their allegations, the conclusion would be irre- sistable, tantamount for all practical purposes to a mathe- matical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre- existing municipal vote. 364 U.S. at 341, 81 S.Ct. at 127. These cases illustrate what is apparent on the face of the amendment: a showing of racially motivated official action that infringes the right to vote is sufficient to state a cause of action. Our holding is the converse of this proposition. A showing of improper moti- vation or purpose is necessary to establish a valid cause of action under the fifteenth amendment. Our conclusion is compelled by Wright, the Supreme Court decision we have 29 DIES SESS EE LE TD | TT eT ar held controlling on the issue of intent in the fourteenth amendment claims in this case. Wright was brought under the fif- teenth amendment as well. 376 U.S. at 56, 84 S.Ct. 603. That the Court held a show- ing of intentional discrimination was essential to a valid claim in that case implies as a matter of logic that such a demonstration is necessary under both four- teenth and fifteenth amendments. | Cases in this circuit exemplify the; teaching of Wright. In Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975), we vacated and remanded a judgment finding an at-large plan violative of the fifteenth amendment. Writing for the court, Judge Simpson stated: it does not suffice to show that the use of [at-large] districts has diminished to some extent the proportion of blacks in the voting unit unless some evidence also demonstrates that such [at-large] districts were "conceived or operated as purposeful devices to further racial or economic discrimination." Id. at 1113 (quoting Whitcomb v. Chavis, 403 U.S. at 149, 91 S.Ct. 1858); see Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976). We have held that the appellants cannot 30 succeed on either their fourteenth or fif- teenth amendment claims unless they estab- lish that Fairfield's at-large method of electing its city council exists because of invidious racial motivations. In the following section we demonstrate that the controlling dilution precedents of this circuit are consistent with this holding. C. Fifth Circuit Dilution Precedents The Alabama statute enabling Fairfield to establish its at-large electoral scheme was enacted in 1909. In 1901, however, Alabama had adopted a constitution which had effectively disenfranchised blacks. The appellees contend, therefore, that the 1909 statute could not have been adopted with a racial animus because no blacks who could have been discriminated against could vote. See McGill v. Gadsden County Commis- sion, 535 F.2d 277, 279-80 (5th Cir. 1976); Taylor v. McKeithen, 499 F.2d 893 (5th Cir. 1974). Although we accept the district court's finding that the 1909 plan was adopt- ed without discriminatory intent, cases of this circuit emphasize that the search for improper motivation does not end at the enacting stage. Thomasville Branch of the NAACP v. Thomas County, 571 F.2d 257 31 (Sth OCiz. ..49768). A plan racially neutral at its adoption, may further preexisting intentional discrimi- nation, e.g., Kirksey, or it may be main- tained for invidious purposes, e.q., Bolden v. City of Mobile, 571 F.2d 238 (5th Cir. 1978). Whether invidious discrimination mo- tivates the adoption or maintenance of a districting scheme or whether the plan fur- thers preexisting purposeful discrimination, the intent requirement may be satisfied by direct or circumstantial evidence. Where direct evidence of discriminatory motive is proffered, a case is easily made, see, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), as it is where the circumstantial evidence of racially discriminatory motivation is so strikingly obvious that no alternative explanation is plausible, e.g., Gomillion; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). "But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence." Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564 (footnotes omitted). An examination of the Zimmer 32 factors shows that they constitute "other evidence" which a court must consider in determining whether the districting scheme exists because of invidious racial con- siderations. The Zimmer criteria go to the issue of intentional discrimination, first of all, because they would be irrelevant if motiva- tion were not an issue. If, as the appel- lants suggest, it is sufficient that "the combination of a legal system (at-large election) with the minority status of blacks and a societal system (racially polarized voting) has the effect of diluting black voting strength" then of what relevance is the accessibility of political processes to blacks, the responsiveness of the city council to the needs of blacks, the weight of the state policy behond the at-large plan, or the existence of past discrimina- tion in the electoral process? Moreover, the Supreme Court has squarely rejected the contention that at-large elections are un- constitutional merely because fewer minority candidates are elected, due to polarized voting, than would correspond to the minor- ity's portion of the district population. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). It is clear, 33 therefore, that mere disproportionate ef- fects are not enough to invalidate an at- large plan and hence that the Zimmer cri- teria purport to establish something more. Perhaps the most useful approach to analyzing the Zimmer criteria as they relate to the existence of intentional discrimina- tion is to assume that an at-large scheme is being used as a vehicle for achieving the constitutionally prohibited end. The objective of such a scheme would be to prevent a group from effectively participating in elections so that the go- verning body need not respond to the group's needs. This objective would be achieved by insuring that a cohesive group remains a minority in the voting population, thus preventing that group from electing minor- ity representatives or from holding non- minority representatives accountable. Circumstantial evidence that the plan was enacted with discriminatory intent may exist in the form of starkly differential racial impact; the historical background of the plan, "particularly if it reveals a series of official actions taken for in- vidious purposes"; or the "specific se- quence of events leading up to the chal- lenged decision." Arlington Heights, 429 U.S. at 267, 97 S.Ct. at 564; see Smith v. J34 Paris, 257 F.Supp. 901 (M.D.Ala. 1966), aff'd per curiam, 386 F.2d 979 (5th Cir. 1967); Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala. 1965). Such was the approach of the in- quiries in Davis and Arlington Heights, cases we noted recently in Kirksey v. Board of Supervisors to be "of particular signif- icance. . .if the only issue were whether the racially neutral plan created such ex- clusion [from the electoral process]." 554 P.2d at 147 (emphasis in original). But, as we held in Kirksey, the inquiry dues not stop at the enacting stage. Where evidence of discriminatory in- tent is lacking in the enacting processes, the Zimmer criteria become acutely rele- vant. They may demonstrate, as in Kirksey, that the neutral plan is an "instrumental- ity for carrying forward patterns of pur- poseful and intentional discrimination." 5954 F.2d at 147. In Kirksey, the plan was recently formulated, and it perpetuated past intentional discrimination. A remote- ly enacted plan, such as the 1909 plan in this case, that was adopted without racial motivations may become a vehicle for the exclusion of meaningful minority input be- cause intervening circumstances cause the plan to work that way. When the more blatant JO I — obstacles to black access are struck down, such an at-large plan may operate to devalue black participation so as to allow repre- sentatives to ignore black needs. Where the plan is maintained with the purpose of excluding minority input, the necessary intent is established, and the plan is un- constitutional. We so hold today in Bolden v. City of Mobile. Whether the plan is recent or remote, the Zimmer criteria provide a factual basis from which the necessary intent may be inferred. Consider a plan neutral in its enactment that is used as a vehicle for in- tentionally ignoring black interests. The existence of such discrimination presupposes racially polarized voting in the elector- ate.® Polarized or bloc voting, although 16. If racially polarized voting did not exist, white candidates could not expect to retain or achieve office solely because they are white. Their black constituents would constitute merely another m'»..rity group that might become an element necessary .o the formation of a majority coalition. Under these conditions, white officeholders would ignore black needs at their peril. Additionally, in the absence of polarized voting, black candidates could not be denied office because they were black, and a case of unconstitu- tional dilution could not be made. "[I]f voting does not follow racial lines, the [voter of the minority race] has little reason to complain. ... (Footnote continued on next page) 36 ". in itself constitutionally unobjection- able,’ minority interests without fear of reprisal allows representatives to ignore at the polls. When bloc voting has been 18 demonstrated, a showing under Zimmer that (Footnote continued fram preceding page) United Jewish Organizations v. Carey, 430 U.S. 144, 166 n. 24, 97 S.Ct. 996, 1010, 51 L.Ed.2da 229 (1977). 17. As the Supreme Court has recently noted, "there is no authority for the proposition that the candidates who are found racially unacceptable by the majority, and the minority voters supporting those candidates, have had their Fourteenth or Fif- teenth Amendment rights infringed by this process." United Jewish Sea Vv. es 430 U.S. 144, 3.Ce. L. 229 (1977); accord, Nevett v. Sides, 533 F.2d 1361, 1365 (5th Cir. 1976). 18. Bloc voting may be indicated by a show- ing under Zimmer of the "existence of past discrim- ination in general. . ., large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates from particular geographical subdistricts." 485 F.2d at 1305. Of course, bloc voting may be demonstrated by more direct means as well, such as statistical analyses, e.g., Bolden v. City of Mobile, 423 F.Supp. 384, 388-89 (S.D.Ala. P ‘d, 571 F.2d 238 (5th Cir. 1978), or the Te lack of success of qualified black candi- Ss. 37 | ERLE eee Le A TN ON ee eT eT Ne the governing body is unresponsive to mi- nority needs is strongly corroborative of an intentional exploitation of the elec- torate's bias. The likelihood of intentional exploitation is "enhanced" by the existence of systematic devices such as a majority vote requirement, an anti-single shot pro- vision, and the lack of a requirement that representatives reside in subdistricts. Zimmer, 485 F.2d at 1305. As the Supreme Court observed, "[t]hese characteristics of [an] electoral system, neither in themselves improper nor invidious, [enhance] the oppor- tunity for racial discrimination... ." White v. Regester, 412 U.S. at 766, 93 S.Ct. 2340. The establishment under Zimmer that blacks have been denied access to slating, registration, or other aspects of political participation may indicate that if white representatives have not properly entertained black interests, it is because blacks cannot achieve the input to which they are entitled. See Wallace v. House, 515 F.2d 619, 622-23 (5th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976). Under the proper circumstances, such a showing would satisfy 38 the intent requirement. 9 ~» A tenuous state policy in favor of at-large districting may constitute evidence that other, improper motivations lay behind the enactment or maintenance of the plan. The absence of a significent and legitimate state policy behind districting provisions 19. Showings of unresponsiveness and lack of access make a strong dilution case. The capacity ‘ of a governing body to respond to the needs of its constituency is, in large measure, what makes that body representative. See H. Pitkin, The Concept of Representation 233 (1972). Ideally, electoral processes are designed to provide an institutional and periodic method of guaranteeing governmental er i "Our concern with elections and electoral machinery, and particularly with whether eave Ge ee results from our conviction t such machinery is neces i ; : sary to in- sure systematic responsiveness." Id. at 234. Thus, if representatives are unresponsi to the needs of a racial group apparently Seite stages of the electoral process diminish oon mS input, the inference that the pro- SSé maintained with the purpose to dis- criminate can fairly be drawn. "the-tecgal éio- tricts, it would seem, violate the Equal Protection Clause, not because they overrepresent or under- represent pure and simple, but because they do that in a context where all stages of the electoral processes have been effectively closed to identi- fiable classes of citizens, making the political establishment ‘insufficiently responsive’ to [those Classes'] interests." Casper, Apportionment and the ——- Right to Vote: Standards of Judicial iny, 1973 Sup.Ct.Rev. 1, 28. See also Hendrix v. Ji 559 F.2d 1265, 1269 (5th Cir. 1977). ? 339 has been an important factor in several cases finding intentional discrimination. In Gomillion, the defendant city officials had "never suggested, either in their brief or in oral argument, any countervailing municipal function which [the districting act] is designed to serve." 364 U.S. at 342, 81 S.Ct. at 127. And in Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915), which struck down Okla- homa's grandfather clause, the Court stated: "we are unable to discover how, unless the prohibitions of the 15th Amendment were considered, the slightest reason was af- forded for basing the classification upon a period of time prior to the 15th Amendment." Id. at 366, 35 S.Ct. at 931. Although state statutes generally need satisfy only mini- mum rationality requirements, see, e.g., Hennessey v. National Collegiate Athletic Association, 564 F.2f 1136, 1144 (5th Cir. ' 1977), the weight of the state policy be- hind the districting plan is an-evidentiary | Consideration that must be considered along | with all other relevant evidence to deter- mine whether the plan is improperly moti- vated. °° Oe 6 - 20. Professor Brest summarizes the relevance a of the weight of the state policy as follows: (Footnote continued on next page) 40 © \ > That the finder of fact determines the plaintiff has prevailed under one or even several of the Zimmer criteria may not establish the existence of intentional dis- crimination. See, e.g., McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976). The evidence under the other cri- teria may weigh so heavily in favor of the defendant that the evidence as a whole will not bear an inference of invidious discrim- ination. Of course, the plaintiff need not prevail under all of the criteria, Zimmer, 485 F.2d at 1305, nor is he limited to them. 74 The task before the fact finder is (Footnote continued from preceding page) The courts possess no general authority to invalidate a decision because it is "undesirable," and an allegation of il- licit motivation does not enlarge their authority. A conscientious decisionmaker, however, considers the costs of a proposal, its conduciveness to the ends sought to be attained, and the availability of alterna- tives less costly to the commmity as a whole or to a particular segment of the community. That a decision obviously fails to reflect these considerations with respect to any legitimate objective sup- ports the inference that it was improperly motivated. Brest, Palmer v. Thomoson: An Approach to the Problem a Unconstitutional Legislative Motive, 1971 Sup.Ct. . 55, 121-22. 21. As we said recently in Kirksey v. Bd. of (Footnote continued on next page) 41 to determine, under all the relevant facts, in whose favor the “aggregate” of the evid- ence preponderates.77 This determination is peculiarly dependant upon the facts of each case. It comprehends "a blend of history and an intensely local appraisal of the de- sign and impact of the [at-large] district in the light of past and present reality, political and otherwise." White v. Regester, 412 U.S. at 769-70, 93 S.Ct. at 2341. It is the obligation, therefore, of the finder of fact carefully to examine and weigh the com- peting factors to determine whether the co- incidence of those probative of intentional discrimination is sufficient. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive (Footnote continued from preceding page) 554 F.2d 139 (5th Cir.) (en banc), cert. qe i's, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977), “Tbly proof of an an aggregation of at least some of [the] Zimmer] factors, or similar ones, a plaintiff can Gemonstrate that the members of the particular group in question are being denied access." Id. at 143 (emphasis added) . 22. This procedure is not different from that employed by a fact finder in resolving any issue by circumstantial evidence. As in other circumstantial evidence cases, it may be that the findings, in the plaintiffs favor, taken individually, cannot establish the ultimate issue. This does not necessarily fore- close relief. The aggregate of the evidence controls. (Footnote continued on next page) 42 DE a ee ce et ts eh inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564. We take this opportunity to address language in several opinions of this cir- cuit that has caused some apparent confusion in this changing and complex area of the law. It appears that a number of our cases have espoused alternative approaches available to plaintiffs in dilution cases. The earliest case setting forth these alternatives is Howard v. Board of Supervisors, 453 F.2d 455 (5th Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972). As we view the constitutional requirements in this area, to establish the existence of a con- etitutionally impermissible re- districting plan, in the absence of malapportionment, plaintiffs must maintain the burden of prov- ing (1) a racially motivated gerrymander, or a plan drawn a- long racial lines, Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512; Gomillion v. Lightfoot, 1960, "364 U.S. 339, 81 S.Ct. (Footnote continued from preceding page) "(T]he convergence of a number of decisions, each of which could be explained in terms of licit objec- tives. . .may may support the conclusion that each of the decisions is illicitly motivated." Brest, supra note at 123 n. 139. 43 125, 5 L.Ed.2d 110; Sims v. Baggett, M.D.Ala. 1965, 247 F.Supp. 96, or (2) that ". .. designedly or otherwise, a[n]. .. apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Burns v. Richardson, 1966, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376. See Whitcomb v. Chavis, 1971, 403 U.S. 124, 143- 144, 149, 91 S.ct. 1858, 29 L.Ed.2d 363. Id. at 457-58 (emphasis in original) (foot- note omitted). Subsequent decisions have reiterated these standards. Panior v. Iberville Parish School Board, 536 F.2d 101, 104-05 (5th Cir. 1976); Ferguson v. Winn Parish Police Jury, 528 F.2d 592, 596-97 (Sth Cir. 1976); Wallace v. House, 515 F.2d 619, 622-23 (5th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976); Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1113 (5th Cir. 1975); Robinson v. Commission- ers Court, 505 F.2d 674, 678 n. 3 (5th Cir. 1974); Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621, 623-24 (Sth Cir. 1974); Zimmer, 485 F.2d at 1304. 44 eine. oe - — = : | The first approach open to plaintiffs is one we have already discussed. Blacks challenging a districting system may suc- ceed under a Gomillion-type rationale by establishing that the plan was enacted with discriminatory purpose. The second avenue, however, seems to allow plaintiffs to succeed under a dilution rationale without establishing intentional discrimina- tion. To the extent that these cases sug- gest that intent is not required, they can- not be reconciled with the intervening Supreme Court decisions in Davis and Ar- lington Heights. In each of these Fifth Circuit cases, however, such language was not operative. In Robinson v. Commissioners Court, the plan was struck down under the first alterna- tive: intentioral discrimination was found. "The district court determined . .. that the County Commissioners' apportionment was designed precisely to dilute the black vote and. . .we find no reason on this record to reject that conclusion as clearly erroneous.” 505 F.2d at 679 (emphasis added). Those cases finding dilution under the second alternative did so on the basis of Zimmer. Wallace v. House, 515 F.2d at 49 623-24; Moore v. Leflore County Board of Election Commissioners, 502 F.2d at 624-25; cf. Ferguson v. Winn Parish Police Jury, 528 F.2d at 598-99. We hold today that a finding of dilution under Zimmer raises an inference of intentional discrimination, and, therefore, the essential element of intent was present in each of these cases. Finally, cases finding no dilution, like Howard v. Board of Supervisors, Panior v. Iberville Parish School Board, and Bradas v. Rapides Parish Police Jury, cannot est- ablish the proposition that intent is un- necessary to make out a dilution case. Having determined that plaintiffs must make a showing of intentional discrim- ination to prevail in a dilution case, and having set forth the meansg,of establishing the requisite showing, we now turn to the specifics of this case to measure it against the standards we have enunciated. III. The District Court's Findings of Fact a We now address the second issue raised on appeal: whether the district court's findings of fact with respect to the Zimmer criteria are erroneous. We must preface our inquiry with the principle that the 46 wi ower ia a district court's determinations under the Zimmer criteria will stand, if supported by sufficient evidence, unless clearly erroneous. Fed.R.Civ.P. 52(a); Hendrix v. Joseph, 559 F.2d 1265, 1268 (5th Cir. 1977); Gilbert v. Sterrett, 509 F.2d 1389, 1393 (5th Cir. 1975); see McGill v. Gadsden County Commission, 535 F.2d 277, 280 (5th Cir. 1976). Additionally, the panel hear- ing this case on the first appeal had occasion to examine the district court's findings of fact, which have not been aug- mented by any new evidence on remand, and it determined that "[nJone of the findings of fact, considered separately from the intermingled conclusions of law, can be set aside as clearly errneous." 533 F.2d at 1364. We accept this court's prior appraisal as law of the case with respect to the factual matters determined by the district court in its original, February 20, 1975, opinion. See Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, at 1319-1321 (5th Cir. 1978); Lincoln National Life In- surance Co. v. Roosth, 306 F.2d 110 (5th Cir. 1962), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963). The only question remaining, then, is whether the latest, June 1l, 1975, findings 47 of the district court are consistent with its prior findings. We proceed by examining the district court's determinations under each of the Zimmer criteria that appellants challenge on this appeal. First, however, we think it profitable to take this oppor- tunity briefly to discuss what Zimmer re- quires of a trial court in a dilution case. The ultimate issue in a case alleging un- constitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group. Zimmer establishes certain subissues, the criteria, that a trial court must address before it can reach the ultimate issue of dilution. In es- sence, the criteria are directions that tell the trial court what’ type of circumstantial evidence can make out a dilution case. The court must address each subissue, if rele- vant to the particular case at hand, 72 and 23. As we note in Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 571 F.2d 248, 255 n. 6 (5th Cir. 1978), dependent upon the nature of the scheme under attack, not all of the criteria may be relevant, and additional factors may have probative force. Notwithstanding, the multifactor test established in Zimmer is the touchstone in dilution cases, and the trial judge must look to it for guidance in determining what subissues may be appropriate. 48 +4 5a Lan anne cena, ER ay 8 Be a eE Be eee determine whether the evidence under that criterion weighs in favor of or against a finding of dilution. The court is next to view the findings under the criteria as a whole, i.e., "in the aggregate," Zimmer, 485 F.2d at 1305, giving due regard to the significance and strength of the finding under each subissue, to determine if the ultimate inference of dilution is permis- sible, and, if so, whether the evidence preponderates in its favor. See Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 571 F.2d at 251. "The process does not differ from that of inferring ultimate facts from basic facts in other areas of the law. It is grounded in an experimental, intuitive as- sessment of the likelihood that the decis- ion was designed to further one or another objective." Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct.Rev. 95, 121. We think that the district court in this case properly followed the mandate of Zimmer and correctly applied its test, and we turn to the findings of the district court that appellants question here. The district court held on remand that there had been no showing of lack of black 49 access to the electoral processes in Fair- field. The court's earlier opinion noted that in 1968 six blacks won election to the counci1?4 but that in 1972 blacks failed to win any of the eight seats they contested. The court at- tributed the marked disparity in these results not to any invidious racial discrimination but rather to the failure of blacks to turn out a higher percentage in 1972.7 The testimony of one of the witnesses was cited as "quite candid. . .in saying that there was no dif- filculty in qualifying to run for the city council." The witness went on to character- ize the task facing a candidate as "essenti- ally. . .a matter of getting out the vote, of getting more votes than the opponent or opponents did." Given these findings, which our prior panel found to be valid, we cannot rule the district court's conclusion of accessibility 24. Seven black candidates qualified to run for city council in 1968. All but the’ candidate for council president prevailed. 25. As the district court stated in its Opinion on remand, "[t]he failure to elect any blacks to the thirteen member council in 1972 was not the result of past discrimination, but rather the conse- quence of (a) a failure to turn out a higher per- centage of black voters than of white voters, (b) bloc voting, and (c) at-large voting for numbered places." 20 clearly erroneous. The success or failure of black candidates appears to depend not upon any barriers to access to the slating or registration stages of Fairfield's political processes but upon racially po- larized voting in an at-large setting and the shifting racial makeup of the voting population. The district court's opinion on re- mand states that ihe appellants have not demonstrated unresponsiveness by city officials to the needs of black residents. The original opinion contains findings that "blacks have gotten far more responsiveness from city council when there were blacks on the city council." The court also. noted, however, “that blacks have not had the door completely closed in their faces inso- far as expressing their opinions at city council meetings, in seeking assistance, pre- senting petitions, being heard, and on some occasions being given what amounts to private audiences for the presentation of these matters." And finally, "the court has sensed that some of these requests have gotten answers, not to the same degree that the witnesses or that the black communities as a whole wanted, but there has not been a total lack of responsiveness merely be- o1 cause there were no blacks on the city coun- - cil." The panel on first appeal found the district court's determination not to be clearly erroneous, and the finding on remand of sufficient responsiveness on the part of the city council is consistent with that determination. Therefore, the finding must stand. The final factual determination chal- lenged by appellants is the district court's conclusion that "plaintiffs have not proved that past discrimination precludes the ef- fective participation by blacks in the elec- tion. system." The parties did not introduce evidence concerning the existence of racial motivation in the passage of the original, 1909 version of the districting legislation. Furthermore, as noted, the appellants failed to supply the court with any substantial evidence of past discrimination relating to Fairfield's electoral system. Since the appellants clearly had the burden of coming forward with evidence of past racial discrimination that precludes the effective participation of blacks in the electoral process today, 7° 26. We are fully aware of the reownt holding in aces v. Bd. of Supervisors, 554 F.2d 139 (5th Cir en U.S. , 98 S.Ct. 512, 54 L.Ba.2d 454 (1977}~ that regained the (Footnote continued on next page) 4 McGill v. Gadsden County Commission, 535 F.2d 277, 280 (5th Cir. 1976), the district court's conclusion in its more recent opin- ion that such preclusion has not been shown to exist must stand as well. We note that not all the district court's findings under Zimmer have been challenged in this appeal. The appellees do not challenge the finding that the state policy behind at-large districting is ten- uous, nor do they dispute the district court's findings under the enhancing factors: that the district is large; that a majority vote. requirement exists, but that since only two candidates run for virtually all posi- tions, the requirement is "for all practical purposes no different from a plurality vote requirement"; and that the Fairfield plan requires candidates to run for numbered positions. Nor do the appellants challenge the finding that there is a residency require- ment in Fairfield's plan. Since these (Footnote continued fram preceding page) defendants in that case to bear the burden of coming "forward with evidence that enough of the incidents of the past had been removed, and the effects of past denial of access dissipated, that there was presently equality of access." Id. at 144-45. The reasoning leading to the placement of this burden on defendants is not apposite in this case. The en banc court emphasized that the plaintiffs had (Footnote continued on next page) 23 findings have not been disputed, they are not open to question on appeal. We find the district court's factual determinations under Zimmer not clearly erroneous; therefore, the only primary fac- tor that we take to be established in the appellants' favor is the existence of a tenuous state policy behind at-large dis- tricting. The district court found this showing, "[e]ven when ‘enhanced' by two or possibly three of the 'extra' factors," to be "insufficient 'in the aggregate' to establish a case of 'dilution.'" Consequent- ly, our only remaining task is to determine whether this conclusion is correct as a matter of law. IV. The District Court's Interpretation of Zimmer and Subsequent Dilution ~ Precedents The final issue we must address is whether the district court's conclusion that dilution had not been demonstrated represents a proper interpretation of Zimmer and other applicable case law. We note initially that the district court properly followed the ne eee, ce aa ee ee instructions in our prior opinion in this case to base its conclusions "on the criter- ia that. . .Zimmer. . .distilled from White v. Regester. . .and in accordance with all later cases." 533 F.2d at 1365. The district court has made specific findings with regard to each of the dilution criteria. We find also that the court properly approached the task of weighing the Zimmer factors. As we have stated, the task before the district court is to determine whether the criteria in the aggregate indicate a racially motivated dilution. The district court correctly performed its task when it proceeded from the understanding that "'dilu- tion' is to be defined as the ‘aggregate' of the factors outlined in Zimmer, bearing in mind that ‘all of these factors need not be proved in order to obtain relief.'" Furthermore, after concluding that of the primary factors, the appellants had estab- lished only the existence of a tenuous state policy, the court held this showing to be “insufficient ‘in the aggregate’ under [the Zimmer] critéria to establish a case of dilution.'" We find the district court's conclu- sion wholly correct. We cannot say that a finding of a tenuous state policy behind at- DO large districting, standing alone, makes out a case under Zimmer or any other con- trolling precedent. In the absence of other evidence indicating the existence of in- tentional discrimination, state enactments providing for at-large districting are entitled to the deference afforded any other statute: their means need only be reasonably related to ends properly within state cog- nizance. E.g., Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 1910, 52 L.Ed.2d 513 (1977); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369 (1911). That these minimal constraints are satisfied by state statutes providing for government by representatives elected at- large is beyond dispute. The Supreme Court and this circuit have repeatedly rejected contentions that at-large districting is per se unconstitutional. E.g., White v. Regester, 412 U.S. at 765, 93 S.Ct. 2332; Whitcomb v. Chavis, 403 U.S. at 142, 91 S.Ct. 1858; Lipscomb v. Wise, 551 F.2d 1043, 1046 (Sth Cir. 1977), cert. granted, U.S. _—, - 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); Turner v. McKeithen, 490 F.2d 191, 06 196 n. 23 (5th Cir. 1973); Zimmer, 485 F.2d at 1304. The question whether the enhancing factors found co exist are sufficient in this case, when aggregated with the exis- tence of a tenuous state policy, is a fac- tual issue that must be resolved by the district court. Given the inability of the appellants to establish any additional criteria that would lend support to an inference of racially motivated dilution, the trial court's determination must stand. The appellants did not demonstrate a lack of access to the political processes in Fairfield. They did not establish that the commission was unresponsive to the needs of the black community, and although this failure does not preclude a finding of dilution, McGill v. Gadsden County Commis- sion, 535 F.2d 277, 280 n. 7 (Sth car. 1976); Zimmer, 485 F.2d at 1306-07 n. 6, it weighs heavily against an inference of intentional discrimination because the incumbents are not visibly exploiting their majority status to the detriment of the minority constituents. No residual effects of past discrimination were found to preclude the effective political participation of blacks in Fairfield. Indeed, six blacks a7 were elected to the city council in 1968, ang the district court found the failure of black candidates in 1972 to be due not to invidious racial discrimination but to a failure to turn out more of the black vote. Under these particular circumstances, the district court's conclusion that "there has been no evidence that the claimed 'di- lution' was the result of any invidious discriminatory purpose" (citing Davis) is wholly warranted. The failure to estab- lish the existence of intentional discrimi- nation follows naturally from the factual determinations under Zimmer in this case. This case, then, falls squarely with- in the principle established in Wright and reaffirmed in Davis and Arlington Heights. In the aggregate, the Zimmer criteria do not point to a racially motivated dilution. Absent a showing that intentional discrimi- nation was a motivating factor in either the enactment or maintenance of the plan, these appellants cannot succeed. The district court's judgment is therefore AFFIRMED. 08 APPENDIX The Opinion of the District Court MEMORANDUM OF OPINION* This court, under the mandate receiv- ed June 10, 1976, is to reconsider its ear- lier decision in the light of the principles stated in the opinion of the Court of Appeals. Due to imminent deadlines for compliance with election law procedures, oral argument was, with consent of the parties, immediate- ly scheduled. This memorandum supplements (and, to the extent inconsistent, supersedes) the earlier findings and conclusions of the court, which will not be repeated. The first task is to make specific findings with respect to the four principal factors outlined in Zimmer v. McKeithen, 485 F.2d 1297, 1305 (CA5 1973), as the criteria for determining "dilution." (1) The plaintiffs, blacks residing in the City of Fairfield, have not demonstrated any lack of access to the process of slating candidates for city elections; for in Fair- field there has been no such slating. Perhaps more to the point, the evidence has not shown that blacks in recent years have been denied access to participation in any parts or phases of the election *Nevett v. Sides, N.D.Ala., No. 73-P-529. 09 processes in Fairfield, e.g., qualifying the city into wards and to decide upon the as candidates, campaigning, voting. | number of such wards. If more than seven (2) It has not been demonstrated that there ! wards are created, then each ward, by vote has been "unresponsiveness" by city officials to | of the ward, will elect a single member to the "particularized needs" of blacks. This is not, the city council (with the president of the of course, merely a question of whether the city of- council, and perhaps other members being ficials have listened to, and given same answer to, elected from the city at-large). If less the special requests of black citizens of the city. than eight wards are created, then all Nor is it a question of whether those officials have members of the council will be elected by always complied with those requests. Rather, the at-large vote, with two members being re- standard involves an inquiry into whether those of- | sident of each ward. In view of this ficials -have reacted to those needs with sympathy and optional dichotomy, it cannot be said that concern-—such as would be expected of persons hold- there is a state policy favoring at-large ing a public trust for all the citizenry or multi-member districts for city council of a community, who are ultimately account- in preference to single-member ward-elected able to all the voters at the next election. districts. (Proof that there is no such While the evidence has shown that blacks state policy should suffice to establish have fared less well during an all-white that any such state policy is "tenuous". ) city administration than during a racially- (4) The plaintiffs have not proved mixed administration or than under the laws that past discrimination precludes the of chance, it has not established "unrespon- effective participation by blacks in the siveness" under this standard. In this election system. The discrimination made . . . 7 respect, it should be noted that the inquiry known to the court pre-dated the elections is directed to "unresponsiveness", referring in 1968, in which six of the 13 persons to a state, condition or quality of being elected to the council were black. The unresponsive, and is not. established by failure to elect any blacks to the thirteen isolated acts of being unresponsive. | member council in 1972 was not the result (3) Under state law, cities of the of past discrimination, but rather the 60 61 ee ee ee re higher percentage of black voters than of white voters, (b) bloc voting, and (c) at-large voting for numbered places. Next, the court is to make specific findings on the "enhancing factors" outlined in Zimmer v. Keithen, supra, 485 F.2d at 1305. (1) Since the past elections have been from the city at large, the election district must be considered "large", at least in a relative sense. The district is as large as it can be. (2) There is a majority vote require- ment. Where, however, as in the 1972 election, there are but two people running for virtually all positions, a majority vote requirement is for practical purposes no different from a plurality vote require- ment. (3) There is no anti-single slot voting provision since candidates run for numbered positions. The numbered position approach does have some of the same conse- quences however as an anti-single shot, multi-member race; because a cohesive min- ority is unable to concentrate its votes on a single candidate. The numbered position approach does, however, eliminate the prob- lem caused when a minority group is unable 62 to field enough candidates in anti-single shot, multi-member races. (4) There is a provision, a require- ment, that the at-large candidates for the city council (excepting the position of President) be residents of particular geographical subdistricts. When this court entered its earlier decision, it did so in the belief that "dilution" was established upon proof that (a) in a city where blacks constituted a majority of the voters in some of the dis- tricts but slightly less than 50% of the voters for the city as a whole, (b) where voting rather strictly followed racial lines, (c) a "winner-take-all" election system by at-large voting for numbered places resulted in practice (d) in an all-white governing body, (e) whose decisions, though without indication of fraud or bad faith, quite understandably tended to re- flect their own perspectives and the atti- tudes of those who elected them, to the relative detriment of the black minority, (f) including such matters as appointments to other boards and agencies of the city. The court was of the view that such evidence demonstrated that the black plaintiffs "had less opportunity than did other residents 63 —— ee in the district to participate in the po- litical processes and to elect legislators of their choice." White v. Regester, 412 U.8. 755, 766,:93 6.Ct. 2332; 2338,: 37 L.Ed.2d 314 (1973). The court thought that the factors outlined in Zimmer were to be taken as indicia of--but not neces- sarily the determinants of--"“dilution." The court now understands that its approach was in error and that "dilution" is to be defined as the "aggregate" of the factors outlined in Zimmer, bearing in mind that "all of these factors need not be proved in order to obtain relief." 485 F.2d at 1305. It appears that only one of the four primary factors--number (3)--has been established by plaintiffs. Factors (1) and (4) have clearly not been proved. The evidence respecting factor (2) is mixed, but, using what the court believes to be the appropriate meaning of "unresponsiveness", this factor has likewise not been proved to the court's reasonable satisfaction. Even when "enhanced" by two or pos- sibly three of the "extra" factors, proof of factor (3) is insufficient "in the aggre- gate" under these criteria to establish a case of "dilution." Accordingly, the court finds and concludes that there has not been 64 proved an impermissible dilution of black votes under the existing Fairfield system. It may be noted that there has been no evidence that the claimed "dilution" was the result of any invidious discriminatory purpose. Cf. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Judgment in favor of the defendants will be entered by separate order. This the llth day of June, 1976. /s/Sam C. Pointer, Jr. United States District Judge WISDOM, Circuit Judge, specially concurring. I concur in the results the majority reached in three of the voting dilution cases decided today: Nevett v. Sides, 571 F.2d 209; Thomasville Branch of the NAACP v. Thomas County, 571 F.2d 257; Bolden v. City of Mobile, 571 F.2d 238. I cannot find as much between the lines of the Zimmer opinion as the majority finds, but in view of Washington v. Davis and Ar- lington Heights I understand why the major- ity should seek and find discriminatory intent. The majority holds that these two important cases require proof of a racially 65 Ce AON ADM TEN Te! METS MRE Re ee TES NS AR EEL a EUR TTS OT PETE TT” discriminatory intent in voting dilution cases. The intent is established by a show- ing that there exists an "aggregate" of the factors outlined in Zimmer. The fact- finder determines "under all the relevant facts, in whose favor the ‘agqgregate' of the evidence preponderates." (The majority's focus, notwithstanding its emphasis on in- tent as an essential element in/a holding of dilution, is on the effects of at-large voting or multi-member districting on the accessibility of a minority group to the political process.) Then, if invidious effects preponderate, the court by infer- ence declares that the legislative body which initiated the plan had a racially discrimina- tory intent. If for historical or other reasons the voting scheme could not initially have motivated by a racially discriminatory intent, as in Shreveport, then failure of the legislative body to take affirmative curative action demonstrates, under Kirksey, an illegal intent to maintain diluted voting rights. I find it more straightforward, and not inconsistent with Washington v. Davis and Arlington Heights, to hold that the fourteenth amendment, through the equal protection clause, and the fifteenth amend- 66 ment, in itself and through congressional statutes enacted to make the amendment ef- fective, prohibit dilution of voting rights-- without proof of racial discriminatory purpose. I agree, therefore, with the posi- tion of the United States, as expressed in the amicus brief of the Attorney General. And in the field of civil rights I recognize and would give weight to the expertise of the Department of Justice. Le In Fortson v. Dorsey, 1965, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, the Supreme Court said: It might well be that, designedly or otherwise, a multi-member con- stituency apportionment scheme, under the circumstances of a parti- cular case, would operate to mini- mize or cancel out the voting strength of racial or political elements of the voting popula- tion. . .This question, however, is not presented by the record before us." (Emphasis added). The Supreme Court reaffirmed this language in Burns v. Richardson, 1966, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376: “Where the re- quirements of Reynolds v. Sims are met, ap- portionment schemes including multi-member districts will constitute an invidious dis- crimination only if it can be shown that 67 'designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting pomulation.'. ..." (Emphasis added). 384 U.S. at page 88, 86 S.Ct. at page 1294. The Court twice re- peated the substance of this statement. At page 88, 86 S.Ct. at page 1295, the Court said: "Speculations do not supply evidence that the multi-member districting was de- signed to have or had the invidious effect necessary to a judgment of the unconstitu- tionality of the districting. . . ." (Em- phasis added). And on page 89, 86 S.Ct. on page 1295, the Court said: "(Legislative judgments on apportionment are] subject to constitutional challenge only upon a demon- stration that the interim apportionment, although made on a proper population basis, was designed to or would operate to minimize or cancel out the voting strength of racial or political elements of the voting popula- tion." (Emphasis added). This Court has construed the Supreme Court's use of the term "or otherwise" to mean that intent to discriminate need not be proved when a voting plan minimizes or cancels out minority voting strength. Panior 68 v. Iberville Parish School Bd., 5 Cir. 1976, 536 F.2d 101, 104-105; Ferguson v. Winn Parish Police Jury, 5 Cir. 1976, 528 FP.2d 592, 597; Wallace v. House, 5 Cir. 1976, 515 F.2d 622-623; Bradas v. Rapides Parish Police Jury, 5 Cir. 1975, 508 F.2d 1109, 1113; Robinson v. Commissioners Court, Anderson County, 5 Cir. 1974, 505 F.2d 674, 678 n. 3; Moore v. Leflore County Board of Election Commissioners, 5 Cir. 1974, 502 F.2d 623- 624; Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d at 1304; Howard v. Adams County Board of Supervisors, 5 Cir. 1972, 453 P.2d 455, 457-458, cert. denied, 405 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972). In White v. Regester, and Whitcomb v. Chavis, the leading cases involving multi- member districts, the Supreme Court did not require proof of a legislative intent to dis- criminate. White \. Regester did not sug- gest that the reapportionment was enacted with improper racial motive and intent; instead the Court discussed the effect of the reappor- tionment plan upon minorities in Bexar and Dallas Counties. The plaintiffs' burden was to show that they “had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice". White 63 = ' v. Regester, 412 U.S. at 766, 93 S.Ct. at 2339. Washington v. Davis and Arlington Heights were not voting dilution cases. Washington v. Davis sustained the use of a pre-employment test which had a dispro- portionate impact on black applicants; this seems to have been the sole effect on which the plaintiffs relied. In Arlington Heights the Court held that the plaintiffs had failed to prove discrimination when a village refused to re-zone property for the con- struction of racially integrated low income housing; as I see it, the Court could reason- ably have gone either way in that case. The reach of these cases extends beyond their contexts, but I find it significant that the opinions do not mention White v. Regester; Whitcomb v. Chavis, or any other case in- volving dilution of the black vote by at-large voting or multi-member districts. The Court did cite Wright v. Rockefeller, but in that case the plaintiffs failed to prove vote dilution; even if the district lines followed racially identifiable neighborhood lines (which the court doubted), they were drawn with either a neutral or benign purpose. As this Court stated in Kirksey, 554 F.2d at 149: "White v. Regester is alive and well"; 70 ee Washington v. Davis and Arlington Heights do not “suggest that White v. Regester and its progeny are no longer law". My disagreement with the majority is not in our different verbalizing of simi- lar views. I agree that it is reasonable to argue, for example, that proof of the invidious effects of multi-member dis- tricts or at-large voting raises an infer- ence, perhaps, in some cases, a strong pre- sumption, of discriminatory purpose. That formulation is run-of-the mine, acceptable, legal semantics--in some cases. It will not cover those cases in which the voting scheme was neutral when initiated or even benign but had unintended or inadequately considered invidious effects on the voting rights of minorities. In those cases, as the majority was driven to say, the discrimina- tory purpose is found in maintaining the voting plan, that is, taking no affirmative curative action. This view of inaction is inconsistent with Washington v. Davis. a In some cases legislative intent may be unprovable; resort must be had to infer- ence. When, however, a court must consider a laundry list, an "aggregate" of factors, some pointing one way and others pointing another way, the case turns on the attitude 71 of the trial judge and the appellate judges toward the American brand of federalism; I question whether "Our Federalism" is James Madison's federalism. Is federal interfer- ence with the voting scheme of a State or local government an unwarranted intrusion or is it valid protection of federal rights under the thirteenth, fourteenth, and fif- teenth amendments? The answer may depend more on the iegal philosophy of the parti- cular judge or judges in the case than on the logical relationship between effects, as evidentiary facts, and the inference that the state or local governing body ne- cessarily intended to deny or to dilute the votes of black citizens. The judicial branch defers to the coordinate legislative branch. And federal judges have been edu- cated to respect the States. It comes hard for a federal judge, searching for some- thing as tenuous as legislative motive, to say that a State or local governing body in bad faith devised a scheme to deny or to dilute voting rights guaranteed by the Constitution. The inference of a racially discrimi- natory purpose is not as simple to draw as one would think from a reading of the major- ity opinion. Palmer v. Thompson, 1971, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 72 illustrates this point. In that case a city ordinance, neutral on its face, closed all publicly-operated swimming pools in Jackson, Mississippi, a few days after a court ordered the pools desegregated. "Almost everyone in Jackson, Mississippi,knew the city closed its swimming pools solely to avoid inte- gration. 2" The Mayor of Jackson flatly stated that the city would not operate integrated pools. The record strongly sup- ported an inference of segregative intent from the circumstances incident to the closing of the public swimming pools. The Supreme Court, however, noted that the Court has never "held that a legislative act may viol- late equal protection solely because of the motivation of the men who voted for it”. 1. Brest, Palmer v. Thompson, 1971 S.Ct. Rev. 95, An Approach to the Problem of Unconstitu- tional Legislative Motive. 2. The Court distinguished Griffin v. Prince Edward County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L-Ed.2d 256 (1964) and Gomillion v. Light- foot, 364 U.S, 339, 81 S.Ct. 125, 5 LBd-3d 110 (1960) on the ground that "the focus in those cases was on actual effects of the enactments" rather than on motivation. Four members of the Court found either discriminatory purpose or effects or both. 73 403 U.S. at 224, 91 S.Ct. at 1944. The Court accepted the City's explanation that it had closed the pools to avoid violence (cf. Cooper v. Aaron, 358 U.S. 1, 785 S.Ct. 1401, 3 L.Ed.2a 5 (1958)) and because the pools could not be operated economically. I would distinguish cases involving voting rights from all other types of equal protection cases. > "(T]he political franchise of voting" is "a fundamental political right, because [it is]. preservative of all rights." Yick Wo v. Hopkins, 1886, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed.2d 220. "The right to vote freely for the candidate of one's choice is of the essence of a demo- cratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effect- ively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 1964, 377 U.S. 533, 555, 84 §.Ct. 1362, 1378, 12 L.Ed.2d 506. 3. In particular, it is clear that Congress has the power to omit any requirement of "purposeful discrimination" from the civil rights act. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Arlington Heights v. Metro- politan Housing Development Corp. 74 The safe and sure test for the consti- tutionality of a voting plan is proof of invidious effects, such as the failure to give due weight to votes of members of a minority group. When there is clear proof of this effect, I disapprove of resorting to a dowser to divine whether under an "aggre- gate" of surface factors there is an uncon- stitutional legislative motive. Ade There is no doubt that a provable racially discriminatory legislative purpose fortifies the plaintiffs in a case based on the eoual protection clause of the four- teenth amendment. But under the fifteenth amendment, proof of such a purpose is irrel- evant. Washington v. Davis and Arlington Heights did not involve the fifteenth amend- ment. Indeed, no Supreme Court opinion holds that voting dilution is insufficient to 4. My position is this case is unrelated to the traditional use of legislative history to deter- mine legislative purpose as an aid to statutory interpretation. Also, stated in other terms, one might say that in the area of voting discrimination, as in same other areas, for example, cases involving segregated facilities, even before congressional action the possibility of a nonracially motivated purpose is so minimal that it should not be allowed to cloud the picture. 79 stablish a violation of the fifteenth amend- ment without proof of a discriminatory le- gislative purpose. Furthermore, even if the majority imports an intent requirement into the fifteenth amendment itself, in Bolden and Thomasville the plaintiffs al- leged violations of the Voting Rights Act of 1965 (42 U.S.C. §1973) and the Civil Rights Act of 1870 (42 U.S.C. §1971). The fifteenth amendment provides that the "rights of citizens of the United States to vote shall not be denied or ab- ridged. . .on account of race." There is nothing in the amendment itself requiring proof of legislative purpose. The need for a discriminatory intent in most cases arising under the equal protection clause was not conclusively established until Washington v. Davis. Many courts and com- mentators have taken a different position.” 5. See, €.g., Metropolitan Housing Devel. Corp. v. Village of Arlington Heights, 7 Cir. 1975, S17 F.2d 409, rev'd, 1977, 429 U.S. 252, 97 S.Ct. 555, 54 L.Ed.2d 772; Davis v. Washington, 1975, 168 U.S.App.D.C. 42, 45-47, 512 F.2d 956, 959-61, rev'd, 1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Be a 1975, 168 U.S.App.D.C. 62, 67, F. 976, 981; Brid rt Guardians v. Bridgeport Civil Service Comm'n, 2 ai 1973, 482 F.2d 333 1337; Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. 1972, 467 F.2d 142, 148, cert. denied, 413 U.S. 920, 93 S.Ct. 3053, 37 L.Ed.2d 1041; Castro v. (Footnote continued on next page) 76 The majority here gives no reasons for read~ ing the fourteenth amendment requirement, as construed in Washington v. Davis, into the fifteenth amendment. The fundamental impor- tance of the right to vote argues for expan- Sive protection of that right. (Footnote continued from preceding page) Beecher, 1 Cir., 1972, 459. F.2d 725, 732-33; Chance Vv. Board of Examiners, 2 Cir..1972, 458 F.2d 1167, II75-76; Hawkins v. Town of Shaw, 5 Cir. 1971, 437 F.2d 1286, 1291-92, aff"d en banc, 461 F.2d 1171 (see especially my concurring opinion at 1174); Southern Alameda Spanish Speaking Organization v. Union City, 9 Cir. 1970, 424 F.2d 291, 295-96. (dictum). ' Several Supreme Court opinions could have led observers to believe that intent was irrele- vant to equal protection challenges. See Palmer v. Thompson, 1971, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438; Wright v. Council of City of Emporia, 1972, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51. See also Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 217, 224-32, 93 S.Ct. 2686, 37 L.Ed.2d 548 (Powell, J., concurring and dissenting). A sampling of the commentators who have advocated tests in- volving less intent than Washington v. Davis includes Goodman, De Facto School Segregation: A Constitu- tional and Empirical Analysis, 60 Calif.L.Rev. 275 (1972); Perry, The Disproportional Impact Theory of Racial Discrimination, 125 U.Pa.L.Rev. 540 (1977) (although he excludes voting cases from his theory) ; Karst, Foreword: Equal Citizenship Under the Four- teenth Amendment, 91 Harv.L.Rev. 1 (1977); L. Tribe, American Constitutional Law 1028-32 (1978); Fiss, Groups and the Equal Protection Clause, 5 J.Phil. & Pub.Aff. 107 (1976); Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication, 52 N.Y.U.L.Rev. 36 (1977). a When the focus of our inquiry shifts from the right to vote under the equal pro- tection clause to the right to vote under the fifteenth amendment, even stronger reasons appear for rejecting legislative intent, motive, purpose, whatever name is given to the leap from evidentiary facts to proof of the legislative objective. Most states do not tie the legislature's hands with records of committee reports and debates. After Brown, in controversial racial decisionmaking sophisticated, facially neutral discrimination soon replaced overt discrimination. Con- sider, for example, the progression from the grandfather clause to the understanding clause to the lily white primary to the literacy test and eventually, by phases, to an absolute facially neutral citizenship test administered not arbitrarily but fairly. United States v. Louisiana. ° With almost all eligible whites registered in a voting dis- trict, the citizenship test--which applied to blacks and whites equally-~resulted in effectively discriminating against unregistered blacks. As to the citizenship test, no ev- idence, except the historical pattern and 6. United States v. Louisiana, E.D.La. 1963, 225 F.Supp. 353, 380; aff'd Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 ‘78 Seer TPIS. 6. the effect, bore on the question of uncon- stitutional legislative objective. The fourteenth amendment's equal protection clause is a broad statement, without self-evident limits. Its requirement of "equal protection of the laws" is sub- ject to many interpretations. The doc- trinal apparatus applicable to equal pro- tection claims is far removed from the exact words of the amendment. The Supreme Court has long read equal protection to forbid either completely irrational state actions, or activities which "invidiously discrimi- nate" against various groups. Although I believe that an intent requirement has no place in voting dilution cases under either amendment, I concede that the concept of discrimination, the judicial gloss central to our understanding of equal protection, may include a notion of intent. To dis- criminate is to make distinctions. This involves an element of choice missing in non-conscious differences of treatment. Many commentators have seen as the core of harmful discrimination the stigma that attaches to people who are told they are second-class citizens. ’ This stigma might be 7. See, e.g., Cahn, Jurisprudence, 30 N.Y.U. (Footnote contin on next page) 79 seen to arise only from intentional insults, those involving purposeful discrimination. An intent requirement serves two functions in equal protection litigation. (Footnote continued from preceding page) L.Rev. 150 (1955); Black, The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421 (1960); Brest, Foreword: In Defense of the Antidiscrimination Prin- ciple, 90 Harv.L.Rev. 1, 8-12 (1975); Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv.L.Rev. 1, 5-11 (1977); Fiss, Groups and the Equal Protection Clause, 5 J.Phil. & Pub.Aff. 107 (1976). Of course, it must be admitted that intent and stigma are not neatly overlapping concepts. A person may feel oneself stigmatized by an action actually taken for nondiscriminatory reasons. There are hints that the Supreme Court may consider the stigmatizing nature of government ac- tions important in judging their validity. See United Jewish Organizations of Williamsburgh, Inc. Vv. v. Carey, I977, 430 U.S. 144, 165, 97 S.Ct. 996, I009, 5I L.£d.2d 229, where the plurality opinion points out that although the state deliberately used race in its deliberations, "its plan represented no racial slur or stigma with respect to whites or any other race, and we discern no discrimi- nation violative of the Fourteenth Amendment." See also Comment, Proof of Racially Discriminatory ving one Reger Phang er Pobre perl mg v. Davis, Arlington Heights, Mt. Healthy, and Williams- burgh, 12 Harv.Civ.L./Civ.R.L.Rev. 725, 755-61 (1977); Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1969). 80 en It seems to comport with our notion of the central meaning of equal protection--the absence of "discrimination"--and it pro- vides a tool with which to limit the other- wise long reach of the principle. As Justice White, writing for the majority, pointed out in Washington v. Davis, a reading of the equal protection clause completely devoid of an intent requirement would "raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burden- some to the poor and to the average black than to the more affluent white." 426 U.S. at 248, 96 S.Ct. at 2051. An intent requirement is not needed to prevent these problems with the fifteenth amendment. Unlike the fourteenth amendment's ambiguous "equal protection of the laws" the fifteenth amendment demands that the right to vote not be "abridged". This command can be read without the elaborate judicial gloss necessary to make sense of equal protection, specifically, without involving "discrimi- nation". Instead, the words could be given a plain meaning: the right to vote should be the same for citizens of all races. Given the recognized importance of the right to 81 vote, such a preferred position is under- standable. In light of the development of the right to vote under both amendments in the past century, the equality involved is the equal opportunity to elect repre- sentatives. It is an effective equality, although not a guarantee of equality of result--after all, the right to vote was protected, not the right to vote for the winning candidate. In the town of Fair- field, where the number of black voters was about the same as the number of white voters, given no abridgement of their right to vote, blacks had an equal opport- unity with whites to elect representatives. In the City of Shreveport, where blacks were 34 percent of the population (black regis- tration had a small percentage), facially neutral at-large voting for city commissioners effectively diluted the black vote--regardless of the purity of motive of the Lousiana legislature in establishing the system in 1910, when no blacks voted. Furthermore, the fifteenth amendment by its terms is less expansive than the equal protection clause. Reading of this amendment as dealing with effects, not le- gislative intent, does not throw into ques- tion taxing, welfare, and regulatory schemes; 82 Tae aastae eee ee merely voting schemes. And it is limited to racial groups. The reasons for restricting the equal protection clause do not apply to the fif- teenth amendment. When a government adopts a system of voting that, considered in light of the Zimmer factors, places black citizens at a disadvantage, the government's reasons are irrelevant. The right to vote has been abridged. The majority cites cases where vio- lations of the fifteenth amendment were founé in situations of purposeful discrimination. It recognizes that it must prove the converse proposition: that purposeful diScrimination is required for making out a violation. But the majority does not analyze the prob- lem. The majority rests it conclusion on two cases: Wright v. Rockefeller and Bradas v. Rapides Parish Police Jury. ' There is little authority one way or another. Until Washington v. Davis, there was no apparent need for black plaintiffs, or the judges reviewing their claims, to distinguish between the right to vote under the two amendments. Wright involved a gerry- mander, not a voting dilution case. There, the parties framed the question as whether the lines had been purposefully drawn 83 on racial grounds. The Court affirmed the decision of a three-judge court, finding that the plaintiffs had not proved either racial motivation or that the legislature "in fact drew the district on racial lines." The Court further noted that it was not obvious that the lines, as drawn, were to the disadvantage of blacks. Three dis- tricts were majority non-white districts, one was almost totally white. As the Court pointed out, some of the black voters in- volved might strongly contest an effort to divide their numbers more evenly. The case is distinguishable from these cases because it was a gerrymander, and because no abridging of black voting strength was clear. Toney v. White, discussed below, demonstrates that Bradas is not the only word in this Circuit on intent and the fifteenth amendment. The precedents cited by the majority are weak. The reasons given by the majority are non-existent. Whatever the status of intent and the right to vote under the equal protection clause, intent should be irrele- vant to the fifteenth amendment. Even if an intent requirement is read into the fifteenth amendment, plaintiffs are not foreclosed from making a case on differ- ential effects. The plaintiffs in Bolden 84 brought suit under 42 U.S.C. §1973; the plaintiffs in Thomasville sued under both §1973 and §1971(a) (1). Under Section 2 of the fifteenth amendment, Congress has the power to enact laws to carry out the purposes of the amend-_ ment. These laws may provide greater pro- tection to voters than exists by force of the constitution alone. South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed2d 769. Some of the provisions of the laws enforcing the fifteenth amendment speak to the Attorney General, some to the rights of individual voters. None of them requires discriminatory intent; at best, for the majority, purpose and intent are alterna- tives. Section 1973c is different in pro- viding that changes in the election laws of covered jurisdiction must be shown not to have the purpose and will not have the effect of denying or abridging minority voting rights. The Attorney General, however, has refused to authorize reapportionments under this provision on the ground that they had the effect, regardless of purpose, of diluting minority voting strength, without considera- tion of intent. See United Jewish Organiza- 89 tions of Williamsburgh v. Carey, 1977, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229. Section 1973a(b) bans "tests or de- vices" in certain jurisdictions unless they were found not to have been used for ten years "for the purpose or with the effect of denying or abridging the right to vote on account of race of color. .. ." [fem- phasis added]. This is clearly stating purpose and effect in the alternative. The tests and devices involved were "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 42 U.S.C. §1973b(c). These provisions speak only the language of effect, making intent irrelevant when the reapportionment abridges the right to vote, or the test determines eligibility. Section 1973 comes from §2 of the same Act, the Voting Rights Act of 1965. It provides that "no voting qualification 86 or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political sub- division to deny or abridge the right to any citizen of the United States to vote On account of race or color". This pro- vision was aimed at subtle as well as obvious state regulations which have the effect of denying citizens their right to vote because of race. Allen v. State Board of Elections, 1969, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d l. Similarly, Section 1971(a) (1), derived from the Civil Rights Act ‘of 1870, provides that all citizens "shall be entitled and allowed to vote. . without distinction of race". These provisions are part of a le- gislative scheme to protect the voting rights of black Americans from both inten- tional and unintentional diminution. They speak of abridging, without requiring intent. Congress must have intended that those aggrieved have the power to protect their rights to the same extent as the Attorney General. I conclude, therefore, that intent is not required to make out a case under Section 1971(a) (1) or Section 87 1973.8 This Court has come to the same con- clusion. In Toney v. White, 5 Cir. 1973, 476 F.2d 203, the plaintiffs challenged discriminatory election practices on both statutory and constitutional grounds. The Court held that any intent to discriminate was irrelevant. The Civil Rights Act of 1870, as amended, 42 U.S.C. §1971 (a) (1) forbids any distinctions based on race in the voting process. And Section 2 of the Voting Rights Act of 1965, 42 U.S.C. §1973, prohibits imposition of 8. Different treatment of similar legis- lative and constitutional provisions would not be without precedent. While Washington v. Davis found that an intent test applied to an employment dis- crimination claim brought under the equal pro- tection camponent of the Fifth Amendment, it spe- cifically reaffirmed that such an intent was not necessary under Title VII. 426 U.S. at 246-48, 96 S.Ct. 2040. See Griggs v. Duke Power . » 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2da 158. Similarly, although the Court struck down the equal protection: challenge to the zoning laws of Arlington Heights, it remanded the case for consideration of the statutory issues. On remand, the Court of Appeals held that a violation of Title VIII could be made out without proof of a discriminatory intent. Me litan Housi Devel t Corp. v. Village of Arlin Height 7 Cir. 1977, 558 F.2d 1283. Accord, United States v. City of Black Jack, 8 Cir. 1974, 508 F.2d 1179, 1184-85. 88 any practice or procedure which has the effect of denying or abridging the right of any citi- zen to vote on account of race or color. [emphasis added] Id. at 207. This reasoning was affirmed by the Court, en banc, 5 Cir. 1973, 488 F.2d 310. Only one judge expressed any reservation about the adoption of a pure effect test. 488 F.2d at 316-17 (Judge Gee, concurring in the judgment). His concurrence makes it absolutely clear that the en banc decision of the Court was based on the conclusion that effect alone was sufficient to prove a violation of these statutes. See also Gremillion v. Rinaudo, E.D.La. 1971, 325 F.Supp. 375, 377. With due deference to my brothers on the panel, to me the proof is convincing in this case that the effect of the per- tinent law was to reduce the value of each black's vote. To require the plaintiffs to prove an unconstitutional legislative mo- tive is to burden the plaintiffs with the necessity of finding the authoritative meaning of an oracle that is Delphic only to the Court. 89 Reverend Charles H. NEVETT et al., Individ- ually, and on behalf of all others Similarly situated, Plaintiffs-Appellees Cross Appellants, Vv. Lawrence G. SIDES, Individually, and in his capacity as Mayor of Fairfield, Alabama, et al., Defendants-Appellants Cross Appellees. No. 75-1864. United States Court of Appeals, Fifth Circuit. June 8, 1976. Before RIVES, GOLDBERG and GEE, Circuit Judges. RIVES, Circuit Judge: Three black citizens who presently reside in Fairfield, Alabama, brought this action on behalf of themselves and all other black citizens residing in Fairfield. The defendants are the City of Fairfield, a municipal corporation, the Mayor of Fairfield, the members of the Fairfield City Council, the City Clerk, and the State Attorney General. The plaintiffs 390 charge that, as applied, the state statute which governs municipal elections in Fair- fie1al operates to unconstitutionally di- lute voting power. 1. Ala.Code tit. 37, §426 (Supp. 1973): "Election of president of council and alder- men.--In cities having a population of twelve thousand or more, there shall be elected at each general municipal elec- tion the following officers, who shall compose the city council for such cities, and who shall hold office for four years and until their successors are elected and qualified, and who shall exercise the legislative functions of city go- vernment and any other powers and duties which are or may be vested by law in the city council or its members: A president of the city council, and in cities having seven wards or less, two aldermen from each ward, to be elected by the quali- fied voters of the several wards vot- ing separately in every ward; except in cities of less than twenty thousand population, in which two aldermen from each ward shall be elected by the electors of the city at large; in cities having more than seven wards, one alder- man from each ward, and a sufficient num ber of aldermen from the city at large to make the total number of aldermen fourteen exclusive of the president of the council; and in cities having fifty thousand population or more the city council may create not exceeding twenty wards. The president of the council shall have the right to vote on all questions the same as any other member of the council. Provided however, that (Footnote continued on next page) 91 After answers of the defendants, and further refinement of the issues by the (Footnote continued from preceding page) the city council of any city having a population of twelve thousand or more may by ordinance or resolution, if adopted by two-thirds vote of the city council more than six months prior to any general mmicipal election, provide that the city coun- cil of said city shall consist of five aldermen to be elected from the city at large. And provided ftirther, that the city council of any city having a pop- ulation of more than thirty thousand, according to the last or any subse- quent federal decennial census, or according to any census of such city made pursuant to article 3 of chapter 10 of this title, or Act No. 845 of the Acts of 1953 (sections 481(1) and 481(2) of this title,) and having only five wards, may, by ordinance or re- solution adopted by two-thirds vote of the city council, at least six months prior to a general mmicipal election, provide that the city council shall consist of a president and five aldermen. If such an ordinance or re- solution is adopted one alderman shall reside in each of the respective wards of the city, the president and all the aldermen shall be elected by the voters of the city at large, and the president shall vote only in case of a tie." (emphasis added) pre-trial order, voluminous evidence was introduced. The evidence consisted of documents, testimony from witnesses, and interrogatories and answers thereto by the parties. After each of the two hearings was conducted, the district court dictated into the record the court's findings of fact and conclusions of law. On February 20, 1975, after the conclusion of the first hearing, the dis- trict court "Ordered and Adjudged that parties present a plan to the Court, by May 1, 1975, consistent with the Court's direc- tions as dictated in the Court's findings of fact and conclusions of law." Pursuant to that order, six differ- ent plans were presented, four by the plaintiffs and two by the defendants. The (Footnote continued from preceding page) elections, the City is divided into six wards, each containing an approximately equal number of voters. Two council members residing in each ward are elected at-large by the voters. The Mayor of Fairfield whose duties and functions are outlined by state law, is also elected by the voters of the City as a whole. In addition, there is a president of the city council elected by the City voters at-large. The legislative powers and certain other functions are vested in the city The complaint seeking declaratory and injunctive | relief was filed May 30, 1973. Without dispute, : the population of Fairfield is between 12,000 and 20,000. For purposes of conducting mmicipal : wee (Footnote continued on next page) 92 93 council which has a total membership of thirteen, that is, the twelve regular council members plus the president of the City Council. ay second hearing was on those plans, and the hearing concluded May 24, 1975. On June 6, 1975, the district court entered its final judgment as follows: It is ORDERED, ADJUDGED and DECREED as follows: 1. The defendants’ motion for recon- sideration of the court's order of February 20, 1975, requiring modification of the existing system of election of members of the City Council of the City of Fairfield, is hereby denied. 2. Subject to possible modification under the conditions set forth in paragraph 3 below, the City of Fairfield, Alabama, beginning with the City Council elections of August, 1976, shall institute the following system of selectio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0023%3A2. Public record. Not legal advice.